County contract hires: An ‘end run’ around civil service law?

Over the past two years, Mayor Billy Kenoi has spent more than $1.5 million on contracted employees, using an exemption to sidestep state civil service laws that require employees be hired based on merit.

That’s according to a West Hawaii Today analysis of contract employment records supplied by the county Department of Human Resources under Hawaii’s open records laws.

Many of those 36 positions — agriculture agent, public information officer, information assistant, transit clerk, parks construction coordinator — could in theory be filled by civil service workers. In some departments, vacancies exist where a civil service hire could be used instead of the contracted one.

The administration defends the practice, saying contract employees are hired for emergencies, such as last year’s lava flow, as a transition when long-term employees retire and need to train successors, when qualified full-time candidates can’t be found and for other special projects and purposes.

“Hiring on a contract basis is an efficient and cost effective way to deliver projects, programs and services for the people of the county of Hawaii,” Kenoi said in a text message.

The use of contracts instead of hiring workers was made possible by a 2007 state law creating the exemption only for the neighbor islands. But one of the crafters of the law said it was intended for a very limited purpose and wasn’t supposed to be an “end run” around civil service laws.

Lawmakers at the time said the new law would “enable the counties to meet the needs of the public in a timely and cost efficient manner.”

“Personal services positions and contracts enable the counties to fulfill necessary duties and services to the public,” said a 2007 House-Senate conference committee report.

State Rep. Marcus Oshiro, an Oahu Democrat who chairs the House Finance Committee, said the bill was drafted at the request of Maui County. The county wanted leeway to hire developmentally disabled workers employed by nonprofit agencies to clean restrooms at county parks, he said.

The law was never intended to be used as a “means to an end run around collective bargaining and civil service laws,” Oshiro told West Hawaii Today on Thursday.

The law sets a 12-month limit on the contracts. But simply writing another 12-month contract when the first one lapses makes a mockery of the limit. One contract hire, for example, has worked 47 months as a fireworks auditor for the Fire Department.

These aren’t low-level hires, either. One contracted employee, a special projects coordinator for Civil Defense, makes $83,208 annually. Another, a director of operations for the Fire Department’s helicopter, makes $74,352. A public information officer and a construction coordinator, both in the Department of Parks and Recreation, pull annual salaries of about $70,000.

A park project manager, grade SR24, is listed as vacant in the Projected Position/Salary Requirements report for 2015-2016 provided to the County Council on May 5. A full third of the 18 positions in the Department of Research & Development, where many of the contract hires are assigned, are also vacant, according to the report.

Some worry the practice could bring county government back to the days of a political spoils system.

Civil service laws were enacted in 1939 to protect government employees from the vagaries of political power, to give them some job security regardless of who was at the helm of government. The labor movement in Hawaii government was spurred on by the creation of the Hawaii Government Employees Association following labor disputes in Honolulu.

The Hawaii Supreme Court in a landmark 1997 case, Konno v. the County of Hawaii, upheld state civil service laws and clarified that positions that have been “customarily and historically provided by civil servants” cannot be privatized. That case came about after the labor union United Public Workers sued the county over jobs set to be privatized at the Puuanahulu landfill.

The 2007 law, allowing employees to be contracted instead of hired, is shortchanging employees being denied a shot at advancement, critics say. The mayor can, for example, put otherwise unqualified people into positions through a contract to give them the experience they need to qualify for a permanent position.

“That’s kind of like the back door approach to civil service positions. You’re preselecting yours in advance,” said a county employee who asked not to be identified for fear of retribution.

The state doesn’t monitor this practice because it applies only to Hawaii County, Maui and Kauai, said Cindy Inouye, deputy director of the state Department of Human Resources Development.

”Our department has no oversight or involvement in application of this provision,” she said in an email.

The responsibility for monitoring the practice falls to the county Department of Human Resources, said Oshiro and Inouye.

County HR Director Sharon Toriano said individuals are hired on a contract basis when it is not practical or appropriate to have those services performed by a civil service employee. A contract hire is often used when the need is temporary, such as a pilot project, a focused study, or a seasonal need, or when the nature of the work is on a part-time or intermittent basis, she said. Contract employees may also be hired when the need is immediate or when a vacancy needs to be covered while the civil service recruitment process is ongoing, she added.

“Hiring on a contract basis can provide county departments with the flexibility they need to operate efficiently while maintaining important services to the public,” Toriano said in an email.

Oshiro said the bill received “less than enthusiastic support from our friends in the labor unions.”

The unions more recently have been strangely silent about the practice.

Leadership at the affected unions, UPW and HGEA wouldn’t comment on whether high-paying jobs are doled out without going through a competitive process where the civil service employees they represent get a shot at advancement. UPW and HGEA officials declined to discuss the issue after West Hawaii Today called and emailed them for more than a month.

It’s difficult to compare Kenoi’s appointments to those of his predecessor, former Mayor Harry Kim, because the law wasn’t created by the state Legislature until 2007, near the end of Kim’s term. Kim had used the contract procedure to hire 10 employees, primarily as lava view interpreters for the Kalapana lava eruption.

“The mayor’s office did not get involved in the hiring of department staff,” Kim told West Hawaii Today last week. “I did not get involved in who to hire but I was involved in the policies of the program.”

As far as contract hires, Kim said he told his department heads, “You better be able to justify why you need extra money for extra help.”

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